2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-29-2006

USA v. Harris

Precedential or Non-Precedential: Precedential

Docket No. 05-2016

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-2016

 

UNITED STATES OF AMERICA

v.

WILLIAM HARRIS,

Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 04-cr-00423)

District Court Judge: Honorable William J. Martini

 

Argued: December 12, 2006

Before: FUENTES and VAN ANTWERPEN, Circuit Judges,

and PADOVA,* District Judge

________________

*The Honorable John R. Padova, District Judge of the Eastern

District of Pennsylvania, sitting by designation.
2

(Filed: December 29, 2006) 

Robert Little, Esq. (Argued)

515 Valley Street 

Suite 170

Maplewood, NJ 07040

Counsel for Appellant

George S. Leone, Esq.

Mark E. Coyne, Esq. (Argued)

Office of United States Attorney 

970 Broad Street

Room 700 

Newark, NJ 07102 

Counsel for Appellee

 

OPINION OF THE COURT

 

VAN ANTWERPEN, Circuit Judge.

A jury in the District of New Jersey convicted William

Harris of being a felon in possession of a firearm in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Harris now appeals

from that conviction, claiming he was denied a fair trial

because (1) he was improperly cross-examined by the
3

government about the credibility of police witnesses, (2) the

prosecutor improperly vouched for the credibility of

government witnesses during summation, and (3) the District

Court did not permit him to question a witness about

testimony in an unrelated criminal case that may have shown

a particular racial bias on the part of the witness. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and will affirm.

I.

On May 8, 2003, officers of the Newark Police Auto

Theft Task Force approached Harris while he was in his car

and arrested him for possessing a handgun. At trial, Harris

and police witnesses provided very different accounts of

Harris’ roadside arrest and his subsequent detention at the

police station. Harris’ testimony conflicted with that of

police with respect to how and why the officers approached

Harris, what Harris had done before his arrest, the discovery

and origin of the weapon found in Harris’ vehicle, and the

origin and contents of a signed statement produced by police.

At trial, after police witnesses and Harris gave

incongruous testimony, the prosecutor cross-examined Harris

about whether police witnesses had lied. As part of her crossexamination, the prosecutor restated various assertions of

police witnesses that directly contradicted Harris’ testimony

and then asked Harris if it was his testimony that the police

witnesses were lying. For example, the prosecutor asked,

“Mr. Harris, it’s your testimony that when Detective Walker

told this jury that you were holding a gun in your hand that
1

Other similar questions to which Harris now objects

include the following: (1) “So it’s your testimony, then, that

Officer O’Connor, when he came to court and explained how he

typed everything, he said, he - - that he was lying?” Harris’

App. at 123A. (2) “And it’s your testimony that Sergeant

Ferreira, when he testified and said how he showed your

statement to you, he was lying?” Harris’ App. at 123A. (3)

“And it’s your testimony that when he described how you were

taking the gun from your front waistband and putting it on the

floor of your car, he was lying?” Harris’ App. at 147A-148A.

(4) “It’s your testimony that Officer O’Connor just made that

up?” Harris’ App. at 163A. (5) “Sir, it’s your testimony that

Sergeant Ferreira was lying to this jury when he said that he

asked you if you swore to the contents of the form?” Harris’

App. at 177A. (6) “And how about when Officer O’Connor

said that you signed this statement, that he saw you sign the

statement, was he lying?” Harris’ App. at 177A. (7) “So when

Officer O’Connor said that you signed the form and he saw you

sign the form, he was lying?” Harris’ App. at 177A. 

4

night, he was lying?” Harris’ App. at 147A.1

 At no time

during this examination did Harris object to these questions.

After cross-examining Harris, the prosecutor made the

following statement during her summation: “So it’s the

defendant’s theory, as you heard, that it’s a big conspiracy . . .

that this gun just appeared, this statement was fabricated, this

statement was forged . . . and that then these officers came

into federal court, each one of them, with a collective 37

years of experience in the Newark Police Department, and
5

they put all that on the line to come in and tell you something

the defendant says wasn’t true.” Harris’ App. at 208A

(emphasis added). Although Harris now claims this statement

improperly bolstered the credibility of police witnesses, at no

time during the prosecutor’s summation did Harris object.

Just before trial, the District Court made a preliminary

ruling with respect to a motion in limine filed by the

government. The motion sought to prevent Harris from

questioning one of the police officers involved in Harris’

arrest about an unrelated criminal case in which the officer’s

testimony may have shown a bias against Hispanics. The

District Court, in granting the government’s motion,

explained that the African-American officer’s alleged bias

against Hispanics was not relevant in Harris’ case because

Harris is not Hispanic (he is African-American) and because

such bias would not be relevant to the officer’s credibility. 

After this preliminary ruling, Harris did not seek to admit

evidence of the arresting officer’s alleged bias.

II.

A. Prosecutor’s Questions to Harris About Police Witness

Credibility

Harris first claims that the prosecutor improperly

influenced the jury’s determinations of witness credibility by

repeatedly asking Harris whether various police witnesses

had lied in an effort to convict him. Because Harris did not

object to any of the allegedly improper questions at trial, both

parties agree that we review this challenge under the plain
6

error standard of section 52(b) of the Federal Rules of

Criminal Procedure. See United States v. Johnson, 302 F.3d

139 (3d Cir. 2002).

Under plain error review, we may grant relief if (1) the

District Court committed an “error,” (2) the error is “plain,”

and (3) the error “affect[s] substantial rights.” United States

v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 123 L. Ed. 2d

508 (1993). An error is “[a] deviation from a legal rule.” 

United States v. Russell, 134 F.3d 171, 180 (3d Cir. 1998)

(citation omitted). It is “plain” when it is “clear under current

law.” Olano, 507 U.S. at 734. And, it “affect[s] substantial

rights” when it is “prejudicial,” i.e., it “affect[s] the outcome

of the district court proceedings.” Id. Even if these

requirements are satisfied, the court should only exercise

discretion to grant relief “‘in those circumstances in which a

miscarriage of justice would otherwise result.’” Id. at 736

(internal citations omitted).

Of the federal courts of appeals that have examined the

propriety of questions posed to a criminal defendant about the

credibility of government witnesses, it appears nearly all find

that such questions are improper. See United States v.

Thomas, 453 F.3d 838, 846 (7th Cir. 2006); United States v.

Williams, 343 F.3d 423, 438 (5th Cir. 2003); United States v.

Sanchez, 176 F.3d 1214, 1219-20 (9th Cir. 1999); United

States v. Sullivan, 85 F.3d 743, 749 (1st Cir. 1996); United

States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995); United

States v. Richter, 826 F.2d 206, 208 (2nd Cir. 1987); but see

United States v. Williamson, 53 F.3d 1500, 1523 (10th Cir.

1995) (characterizing as unpersuasive the reasoning set forth
2

See generally McCormick on Evidence § 43 n. 8 (6th ed.

2006) (explaining why it is usually impermissible to ask one

witness about another witness’ credibility).

7

in Richter as to why such questions should not be allowed). 

These other courts find such questions force defendants to

assess the credibility of others who have testified at trial–a

function exclusively reserved to the jury.2

 See, e.g., Thomas,

453 F.3d at 846.

However, despite their disapproval, courts of appeals

generally have not reversed a conviction solely because such

questions were posed unless opposing counsel specifically

objected to them. Compare Thomas, 453 F.3d at 846

(concluding questions did not influence jury’s verdict);

Williams, 343 F.3d at 438 (concluding that such questioning,

“though inappropriate, is not reversible error”); Sullivan, 85

F.3d at 750 (finding questions were harmless); Boyd, 54 F.3d

at 871 (finding defendant “suffered no prejudice from the

prosecutor’s improper questions”) with United States v.

Geston, 299 F.3d 1130, 1136 (9th Cir. 2002) (explaining “it is

reversible error for a witness to testify over objection whether

a previous witness was telling the truth”) (emphasis added).

Today, we follow our sister circuits and hold that

asking one witness whether another is lying is inappropriate. 

Such questions invade the province of the jury and force a

witness to testify as to something he cannot know, i.e.,

whether another is intentionally seeking to mislead the

tribunal. In addition, as Harris’ counsel explained during oral
8

argument, such questions force defendants into choosing to

either undermine their own testimony or essentially accuse

another witness of being a liar. 

However, we are not unmindful that “[i]t is essential . .

. to the proper functioning of the adversary system that when

a defendant takes the stand, the government be permitted

proper and effective cross-examination in an attempt to elicit

the truth.” United States v. Havens, 446 U.S. 620, 626-27,

100 S.Ct. 1912, 64 L.Ed.2d 559 (1980). Consequently, such

questions would obviously be proper if a defendant opened

the door by testifying on direct that another witness was

lying. See, e.g., Boyd, 54 F.3d at 871 (explaining that had the

defendant “testified on his own that the officers were lying,

such questions might be proper”). Similarly, it is often

necessary on cross-examination to focus a witness on the

differences and similarities between his testimony and that of

another witness. This is permissible provided he is not asked

to testify as to the veracity of the other witness. See, e.g.,

United States v. Gaines, 170 F.3d 72, 81-82 (1st Cir. 1999)

(explaining that questions that avoid the “‘L’ word” and call

upon a witness to say whether another was “mistaken” or

“wrong” may be acceptable); United States v. Gaind, 31 F.3d

73, 77 (2d Cir. 1994) (explaining that “[a]sking a witness

whether a previous witness who gave conflicting testimony is

‘mistaken’ highlights the objective conflict without requiring

the witness to condemn the prior witness as a purveyor of

deliberate falsehood, i.e., a ‘liar.’”). We do not foreclose the

possibility that other circumstances may make a question

about another witness’ veracity appropriate.
9

Although we find the District Court erred in permitting

the prosecutor to ask Harris whether police witnesses had

lied, we find the error was not “plain.” The Supreme Court

has never ruled on the propriety of these questions, and, until

now, neither had this Court in a precedential opinion. 

Furthermore, it is not likely that such questions, standing

alone and without objection, would have “affected the

outcome of the district court proceedings.” Olano, 507 U.S.

at 734. In conclusion, the District Court’s error was not clear

under the law as it existed during Harris’ trial and this

challenge must fail.

B. Alleged Vouching by Prosecutor

Harris also alleges the prosecutor impermissibly

vouched for the credibility of police witnesses by indicating

in her summation that they would be jeopardizing their

careers if they were to lie in court. Because Harris did not

object to the alleged vouching at trial, we review this claim

under the plain error standard. See United States v. Brennan,

326 F.3d 176, 182-86 (3d Cir. 2003); United States v. Walker,

155 F.3d 180, 187-88 (3d Cir. 1998). 

 As the Supreme Court explained in United States v.

Young, “a criminal conviction is not to be lightly overturned

on the basis of a prosecutor’s comments standing alone, for

the statements or conduct must be viewed in context; only by

so doing can it be determined whether the prosecutor’s

conduct affected the fairness of the trial.” 470 U.S. 1, 11, 105

S.Ct. 1038, 84 L.Ed.2d 1 (1985). With respect to improper

vouching, two criteria must be met: “(1) the prosecutor must
3

The supplemental brief was filed by counsel and raised

an issue Harris attempted to present in a pro se brief. Local

Appellate Rule 31.3 prohibits the filing of pro se supplemental

briefs except in cases in which counsel plans to withdraw under

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

10

assure the jury that the testimony of a Government witness is

credible; and (2) this assurance [must be] based on either the

prosecutor’s personal knowledge, or other information not

contained in the record.” Walker, 155 F.3d at 187.

When viewed in the context of the entire summation,

the prosecutor’s statement in this case was isolated and made

in response to Harris’ allegations that the police forged his

signature on a confession and planted a weapon in his

vehicle. In addition, at the end of the trial, the District Court

gave clear instructions to the jury regarding the evidentiary

value of statements by lawyers, the jury’s exclusive role in

making determinations of credibility, and the weight of police

witness testimony relative to that of other evidence. Overall,

while the prosecutor’s comment may have relied on

information not in the record, the District Court’s jury

instructions and the isolated nature of the comment prevented

the kind of “miscarriage of justice” that would require

reversal. Olano, 507 U.S. at 736 (internal citations omitted).

C. District Court’s Ruling That Excluded Evidence of Alleged

Racial Bias

Finally, in a supplemental brief,3

 Harris claims the
493 (1967).

4

Concluding that the District Court’s ruling was final

and, as a result, applying the abuse of discretion standard would

11

District Court’s decision to prevent him from questioning an

arresting officer about an alleged racial bias violated his

rights under the Confrontation Clause. Harris asserts we

should review his claim de novo. In contrast, the government

argues Harris did not preserve this issue for appellate review

and, as a result, we should review it for plain error.

The law on this point is clear: “[A] party who

unsuccessfully opposes an in limine motion to exclude certain

evidence can appeal that ruling without an offer of proof at

trial if the district court was fully informed and made a

pretrial ruling with no suggestion that it would reconsider that

ruling at trial. Concomitantly, where a district court makes a

tentative in limine ruling excluding evidence, the exclusion of

that evidence may only be challenged on appeal if the

aggrieved party attempts to offer such evidence at trial.” 

Walden v. Georgia-Pacific Corp., 126 F.3d 506, 519 (3d Cir.

1997). 

The District Court in this case made a “preliminary

ruling” with respect to the government’s motion in limine at

the outset of the case. Specifically, the District Court Judge

stated, “my preliminary ruling will be that you’re not going to

get into it.” Gov’t App. at 103. After this ruling, Harris did

not attempt to offer evidence of the officer’s bias at trial. For

this reason, we will apply the plain error standard.4
not change our decision with respect to this claim.

12

District courts retain “‘wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable

limits on . . . cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is repetitive or

only marginally relevant.’” United States v. Mussare, 405

F.3d 161, 169 (3d Cir. 2005) (quoting Delaware v. Van

Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 89 L. Ed. 2d

674 (1986)). In deciding whether a specific limitation

violates a defendant’s rights under the Confrontation Clause,

we consider “(1) whether the limitation significantly limited

the defendant’s right to inquire into a witness’s motivation for

testifying; and (2) whether the constraints imposed fell within

the reasonable limits that a district court has the authority to

impose.” Id. (citation omitted).

Harris alleges that testimony by a police witness in an

unrelated criminal matter is evidence of that officer’s bias

against Hispanics. Harris further argues that this bias affected

the officer’s testimony in this case, even though Harris and

the witness were both African-American. The District Court

ruled that, even if the officer’s earlier testimony supported an

inference that he held a bias against Hispanics, there was no

basis to believe that race was a factor in the officer’s decision

to stop Harris, an African-American.

We agree with the District Court’s conclusion and find

no plain error. Assuming the officer held a bias against
13

Hispanics, it is not at all apparent how such a bias would

factor into the officer’s decision to stop or testify against an

African-American. Furthermore, given the District Court’s

wide latitude in these matters, we find that excluding

evidence of the alleged bias was well within the District

Court’s discretion.

III.

For the foregoing reasons, we will affirm the District

Court’s Order of judgment and conviction.